IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110016197 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, upgrade of his undesirable discharge.

2.  The applicant states he served his complete service time and has become disabled.  He would like to upgrade his discharge in order to receive disability benefits.

3.  The applicant provides pages of medical documentation for treatment he received during the period June 1999 to March 2010 and a letter from the Department of Veterans Affairs.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant enlisted in the Regular Army on 14 September 1973.  He completed training and he was awarded military occupational specialty (MOS 16P (Chaparral Crewman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4; however, he held the rank/grade of private/E-1 at the time of his separation.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 10 December 1974, for disobeying a lawful order from a noncommissioned officer (NCO) on 9 December 1974
* 17 October 1975, for disobeying a lawful order from an NCO on 3 October 1975

4.  On 16 January 1976, the applicant's commander initiated a DA Form 4126-R (Bat to Enlistment/Reenlistment Certificate) on him based on two Article 15's and two counseling statements for failing to pay just debts.  On 6 February 1976, the applicant acknowledged receipt of the proposed action and he elected not to make a statement in his own behalf.

5.  On 18 February 1976, the appropriate authority approved the Bar to Reenlistment Certificate.

6.  On 1 June 1976, he received another NJP for disobeying a lawful order from an NCO on 20 April 1976.

7.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 8 September 1976 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, paragraph 13-5a(1), for misconduct – frequent involvement of a discreditable nature with authorities, with an Undesirable Discharge Certificate.  The DD Form 214 he was issued confirms he completed
2 years, 11 months, and 25 days of total active service.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.


9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable, under other than honorable conditions discharge was normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, he was issued a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 13.

3.  In the absence of evidence to the contrary, the discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time and the character of the discharge is presumably commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service appear to be both proper and equitable.

4.  The applicant's record of service shows he was repeatedly punished under the provisions of Article 15 of the UCMJ and he received a Bar to Reenlistment Certificate.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge.
5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110016197



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ABCMR Record of Proceedings (cont)                                         AR20110016197



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